5 controversial court verdicts on sex and lifestyle

The Madras high court's recent verdict that a divorcee cannot claim alimony if she "committed breach of the sexual obligation she had before dissolution of her marriage", joined the list of verdicts on sex and lifestyle that have raised eyebrows.

analysisUpdated: Aug 17, 2015 18:28 IST

HT Correspondent

Hindustan Times

A-file-photo-of-Madras-high-court-Photo-PTI(
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The Madras high court's recent verdict that a divorcee cannot claim alimony if she "committed breach of the sexual obligation she had before dissolution of her marriage", joined the list of verdicts on sex and lifestyle that have raised eyebrows.

Justice S Nagamuthu of the Madras HC said, "A woman divorced on the ground of adulterous conduct would also not be entitled to alimony from her former husband." The same law would apply in the case of a divorcee also, he said in the order.

In the light of this verdict, here's a list of five such judgments by Indian courts that have been questioned by the civil society:

Bail to rape convict for 'mediation' with victim

In June, the Madras HC granted bail to a man convicted for raping a minor girl so that he could settle the case by "mediating" with the victim who gave birth to a child after the sexual assault.

The order was issued in response to an appeal and a bail plea from the convict, V Mohan, who was sentenced to seven years in prison and slapped with a fine of Rs 2 lakh by a Mahila Court in Cuddalore, Tamil Nadu, in 2002.

"In the facts and circumstances, the case before us is a fit case for attempting compromise between the parties. 'Mediation' mode is best suited to them… Keeping the appellant inside the jail and asking him to participate in the mediation talk will not result in any fruitful result," said Justice D Devadass said in his judgment.

"He should be enabled to participate in the deliberations as a free man and vent his feelings, open his mind and moorings. 'Where there is a will, there is a way'," Devadass had said.

Weeks later, the high court revoked the controversial order days after the Supreme Court said it would be a "spectacular error" to adopt a soft approach on cases of rape.

'Pre-marital sex to be treated as marriage'

In 2013, the Madras high court observed that if any unmarried couple of the right legal age "indulge in sexual gratification," it will be considered a valid marriage and they could be termed "husband and wife".

"Consequently, if any couple chooses to consummate their sexual cravings, then that act becomes a total commitment with adherence to all consequences that may follow, except on certain exceptional considerations."

The court added, "Legal rights applicable to normal wedded couples will also be applicable to couples who have had sexual relationships which are established."

It said if necessary either party to a relationship could approach a family court for a declaration of marital status by supplying documentary proof for a sexual relationship. And, if a declaration was received, a woman could establish herself as the man's wife in government records.

Divorce over wife's insatiable desire for sex

Last year, a man approached a Mumbai family court demanding separation from his wife because she was "aggressive and autocratic with an insatiable appetite for sex".

"Due to respondent's (wife's) non-appearance before the court, the petitioner's (husband's) evidence remains unchallenged on record. Hence this court has no option but to accept his evidence as it is and he is entitled to a decree of divorce as prayed," principal judge of family court, Laxmi Rao, ruled in a recent order.

The man, in his petition, told the court that she was showing an "excessive and insatiable desire for sex" and harassed him since their marriage in April 2012.

He was granted divorce by the court.

Partying hard can be ground for divorce

A Navi Mumbai man was granted divorce by a family court in 2011 on the grounds that his wife used to party a lot.

Rajesh Chawla, (42), a mariner, claimed that his wife Seema, with whom he has two children, frequently attended late-night parties, misbehaved with him on many occasions, had outbursts on small issues and made his life miserable, the Times of India had reported.

The family court's verdict was, however, overturned by the Bombay high court, which said social mores and traditional roles were changing.

"Socialising to some extent in the present society is permissible," said Justice Tahaliyani, adding, "But there is no evidence to come to the conclusion that on a particular date Seema was drunk or had excess liquor and had come to the house at a particular time."

Indian laws do not consider marital rape

When the Supreme Court in February this year refused to entertain a woman's plea to declare marital rape a criminal offence, saying it was not possible to order a change in the law for one person, the focus was back on the legal limitations.

In May last year, a Delhi trial court acquitted a man accused of raping his wife, stating that forced sex with a woman does not amount to rape if she is married to the accused.

The law commission in its report to the government in March 2000 had recommended that forced sexual intercourse by a husband be treated as an offence just like any physical violence by a man against his wife. Justice JS Verma committee, that reviewed rape laws after the December 16, 2012 gangrape of a para-medical student in Delhi, had also given a similar suggestion.

But the government has chosen not to change the law that is apparently based on patriarchal social norms.